Fairley v. State

• Decision Date: 25 February 1929
• Docket Number: 27659
• Citation: 152 Miss. 656,120 So. 747
• Court: Mississippi Supreme Court
• Parties: FAIRLEY v. STATE. [*]

120 So. 747

152 Miss. 656

FAIRLEY v. STATE. ^[*]

No. 27659

Supreme Court of Mississippi

February 25, 1929

Division A

Suggestion of Error Overruled March 11, 1929.

APPEAL from circuit court of Perry county, HON. B. F. CARTER Special Judge.

Caesar Fairley was convicted of rape, and he appeals. Affirmed.

Judgment affirmed.

A. T. L. Watkins, for appellant.

If an accused can be shut up in jail and refused access to his family and friends, that he may make preparations for his trial, then we try causes by public opinion and not fairly and impartially. We have never known this to happen before.

To sustain a conviction the evidence of the injured female must be corroborated, on all material facts and circumstances. If it appears incredible, a judgment of guilty should be reversed. Underhill on Criminal Evidence (3 Ed.), sec. 617. Substantial evidence in addition to that of prosecutrix tending to point out the identity of accused, is necessary to establish his identity. Rawls v. State, 62 So. 420.

It is the province of the trial judge, to determine whether or not an infant is competent as a witness, before being permitted to testify before the jury. 7 Ency. of Evidence, 278, subsec. 50. The judge should have examined the child in the absence of the jury before she testified, and not wait until after she had testified; and then attempted to remove the effects from the mind of the jury. Whatever impressions that had been made by the testimony could not be erased subsequently from the minds of the jury.

Competency, as applied to witnesses involves both capacity and qualifications and imports the existence of all essentials to render her fit to testify. Crockett v. Cassell, 116 So. 865; Hunter v. State, 102 So. 282; Row v. State, 98 So. 613; Clinton v. State, 43 So. 312; Hall v. State, 96 So. 644; Carter v. State, 88 So. 571; Crenshaw v. State, 87 So. 328; State v. Comeaux, 77 So. 489.

James W. Cassedy, Jr., Assistant Attorney-General for the state.

It is argued by the appellant that the prosecutrix was not corroborated, and that her evidence is insufficient to support the verdict. In Sanders v. State, 150 Miss. 296, 116 So. 433, it was held that one indicted under sec. 1147 Hem. Code 1927, for forcibly ravishing prosecutrix, may be convicted on her uncorroborated testimony. The appellant in the case at bar was indicted under this same section. The facts in the case at bar are very similar to the facts in the Sanders cases, with the exception that there are several physical facts in the case at bar which corroborate the testimony of the prosecutrix.

The appellant argues that it was error for the court to permit the small child of the prosecutrix to testify. In answer to this contention, it will appear from the record that the court sustained the appellant's objection to the testimony of the child, and that the jury was instructed not to consider anything which the child had said.

Appellant contends that the court erred in failing to sign the bill of exceptions. The appellant failed to obtain two attorneys who were present at the time to sign the bill of exceptions. It therefore appears that the bill of exceptions is not a part of the record, and that the appellant has failed to make it a part of the record by the method prescribed when the trial judge refuses to sign it.

Argued orally by A. T. L. Watkins, for appellant, and James W. Cassedy, Jr., for the state.

OPINION

COOK, J.

At the September, 1928, term of the circuit court of Perry county, the appellant, Caesar Fairley, was indicted, tried, and convicted of rape, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.

We do not think it would serve any useful purpose to state the facts shown by this record. The appellant assigns as error the refusal of the court below to grant him a peremptory instruction, and counsel seems to argue that the testimony was not sufficient to support the verdict. The appellant was indicted under section 1358, Code of 1906 (section 1147 of Hemingway's 1927 Code), and it is well settled that under this section a person may be indicted and convicted on the uncorroborated testimony of the prosecutrix. In the case at bar the prosecutrix was not corroborated as to the identity of her assailant, but as to other material facts she was corroborated by the testimony of other witnesses as to physical facts. The testimony was sufficient to support the verdict, and therefore there was no error in refusing the peremptory instruction requested by the appellant.

The appellant assigns as error the refusal of the court to grant him a continuance on an affidavit, signed by himself, his wife, sister, and brother-in-law, stating that he was arrested on the 12th day of August, 1928, and since that date had been confined in jail, and denied all access to or communication with his said wife, sister, and brother-in-law, and therefore had been unable to prepare for his defense. At the trial the appellant was represented by counsel, and it appears from the record that he was represented by the same counsel at a preliminary hearing before a committing magistrate, and there was no effort to show that appellant had been denied free access to, and communication with his counsel prior to and during the term of court, or that counsel had been in any way hindered or delayed in preparing appellant's defense. The three relatives who joined in the affidavit seeking a continuance testified at the trial, and there was no attempt to show that any witness who might have been of value to the defense was not present in the court at the time of the trial. Other than the general statement that the appellant had been unable to prepare for his defense, there was no effort to show wherein he had been prejudiced, and now, looking at the completed record of the trial, we are unable to see that he was prejudiced by anything set forth in the affidavit for a continuance.

At the trial the state offered as a witness the four-year-old daughter of the prosecutrix, and without conducting a preliminary examination of this child, to determine her capacity to testify as a witness, the court permitted her to be examined before the jury. After the state had concluded its examination of this witness, counsel for the appellant asked her a number of questions, and thereupon the court, without further request, excluded her testimony and instructed the jury not to consider anything she had said. Appellant now assigns as error the action of the court in permitting this child to be examined before the...